ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS


	IN THE CASE OF:  

	BOARD DATE:  5 August 2019

	DOCKET NUMBER:  AR20180006745


APPLICANT REQUESTS:  an upgrade to his under conditions other than honorable discharge

APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: 

* DD Form 149 (Application for Correction of Military Record)
* self-authored statement
* DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)
* Chapter 13 basic information
* unit Orders 59 forfeiture or Detention of pay
* Department of Veterans Affairs (VA) statement in support of claim
* Special Orders 210 announcement of awards
* Special Orders 163 enlistment 	
* a copy of Army Regulation 635-200, dated 19 December 2016

FACTS:

1.  The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 

2.  The applicant states:  

     a.  He has not had any negative incidents during his tenure with the military from 1972 through 1973.  He was a good Soldier, a chaplain’s assistant, platoon guide and he completed advance individual training (AIT) with honors.  

     b.  His discharge was also inequitable, because it was based on erroneous information and no formal documentation or proof of him being a disruption or an unsuitable Soldier.  He has never had any negative or adverse actions during his service.  For the record, he has never been confined by military or civilian authorities during his military tenure.  He was never accused of a crime or misconduct.
3.  The applicant provides:

	a.  A self-authored statement detailing the circumstances surrounding his discharge.

	b.  DD Form 214, for the period ending 7 June 1973 with an under conditions other than honorable character of service.

	c.   A copy of a Trial Defense Services handout with basic information for separating under unsatisfactory performance.  

	d.  Unit Orders 59, dated 8 November 1972, which states on 8 November 1972 the applicant had UCMJ actions for misconduct.  His punishment consisted of forfeiture of $67.00 per month for one month.  

	e.  VA form 21-4138 detailing the applicant’s version of the circumstances surrounding his discharge.  

	f.  Special Orders 210 announcing the applicant earning the Marksmanship Badge with Rifle Bar for the M16 on 29 September 1972.

4.  A review of his service record shows:

	a.  He enlisted in the Regular Army on 21 August 1972

     b.  His DA Form 20 (Enlisted Qualification Record) shows while attending advanced individual training that he was confined on 8 December 1972 for an unknown reason.  He remained in confinement until 6 June 1973.

	c.  His service record is void of the complete facts and circumstances surrounding his discharge.  However, his record contains a DD Form 214 which shows he was discharged from active duty on 7 June 1973 under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 10 with (Separation Program Designator: KFS).  His service was characterized as under conditions other than honorable.  
He completed 3 months and 18 days of net active service this period with 179 days of lost time from 8 December 1972 through 6 June 1973.  It also shows he was awarded or authorized the National Defense Service Medal.

5.  The applicant's record is void of evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15 year statute of limitations.  

6.  By regulation, action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed.  An individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his case.

7.  In reaching its determination, the Board can consider the applicant’s petition and his service record in accordance with the published equity, injustice, or clemency determination guidance.

BOARD DISCUSSION:

After review of the application and all evidence, the Board determined relief is not warranted.  The applicant’s contentions were carefully considered.  The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity.  He did not provide character witness statements or evidence of post-service achievements for the Board to consider.  Based upon his voluntary request for discharge in lieu of court-martial, the Board determined he admitted guilt to a criminal offense in which his command preferred charges that could have resulted with a BCD.  Based on his offense of a criminal nature, as well as his failure to accept responsibility and show remorse for the events leading to his separation, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct.

BOARD VOTE:
Mbr 1	Mbr 2	Mbr 3

:	:	:	GRANT FULL RELIEF

:	:	:	GRANT PARTIAL RELIEF

:	:	:	GRANT FORMAL HEARING

X	X	X	DENY APPLICATION



BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.
	 
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.


REFERENCES:

1.  Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.
2.  Army Regulation (AR) 635-200 (Enlisted Personnel – Personnel Separations), in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  Paragraph 1-8d (Honorable Discharge) states an honorable discharge is a separation with honor.  Issuance of an honorable discharge will be conditioned upon proper military behavior and proficient performance of duty during the member’s current enlistment of current period of service with due consideration for the member’s age, length of service, grade, and general aptitude.

	b.  Paragraph 1-8e (General Discharge) states a general discharge is a separation from the Army under honorable conditions of an individual whose military record is not sufficiently meritorious to warrant an honorable discharge.

	c.  Chapter 13 of that regulation provides action will be taken to separate an individual for unfitness when it is clearly established that despite attempts to rehabilitate or develop him as a satisfactory Soldier, further effort is unlikely to succeed.  An individual separated by reason of unfitness will be furnished an Undesirable Discharge Certificate, except that an Honorable or General Discharge Certificate may be issued if the individual has been awarded a personal decoration or if warranted by the particular circumstances in his case.

3.  On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records regarding equity, injustice or clemency determinations.  Clemency generally refers to relief specifically granted from a criminal sentence and BCMRs may grant clemency regardless of the court-martial forum.  However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in discharge, which may be warranted on equity or relief from injustice grounds.  The guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority.  In determining whether to grant relief on the basis of equity, an injustice, or clemency grounds, BCMRs shall consider the twelve stated principles in the guidance as well as eighteen individual factors related to an applicant.  These factors include the severity of the misconduct and the length of time since the misconduct.

//NOTHING FOLLOWS//

ABCMR Record of Proceedings (cont)	 AR20180006745


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